Novak & Company, Inc.

Plain-English summary

Two Novak plumbing employees walked within three feet of unguarded floor holes at a changing construction site. The general contractor controlled the openings, and union rules prevented Novak from installing rails or covers itself. Although Novak could have reported the condition or removed its employees, the Secretary did not show how long its employees had used the temporary route past the holes or that any supervisor knew of them. The Commission therefore affirmed the citation's vacatur for failure to prove actual or constructive knowledge.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1) (guarding floor openings and holes).
• Outcome: Citation vacated.
• Key point: Exposure observed on one inspection day does not establish constructive knowledge when a subcontractor's access route and site conditions changed constantly and the duration of exposure was not proved.

Full text (OSHRC public release)

SECRETARY OF LABOR,

Complainant,

v.

NOVAK & COMPANY, INC.,

Respondent.

OSHRC Docket No. 80-2946-S

DECISION

Before: ROWLAND, Chairman; CLEARY and
BUCKLEY,[[*]] Commissioner.

BY THE COMMISSION:

Following an April, 1980 inspection, the
Secretary cited Novak & Company for an alleged violation of the Occupational Safety
and Health Act of 1970, 29 U.S.C. �� 651-678, because Novak employees were exposed to
two unguarded floor holes.  The questions before the Commission are whether the
Secretary established that the open floor holes presented a hazard to Novak employees and
whether Novak failed to take reasonable measures to protect its employees and the alleged
hazard.  For the following reasons, we affirm Judge David G. Oringer's decision to
vacate the citation.

I

Novak was a plumbing subcontractor at a New York
City worksite.  During an OSHA inspection, the compliance officer saw two of Novak's
employees walk within three feet of the unguarded floor holes.  According to the
compliance officer, the Novak employees were required to walk past these floor openings on
their way to the stairs which they used in order to reach the basement of the building
where they were working.  If an employer were to fall into the floor holes, he would
drop seven feet from the first level to the basement.

Testimony established that the floor holes were
the general contractor's responsibility and that as a union plumbing subcontractor, Novak
would not be allowed to erect standard railings or move lumber to cover the floor holes.
  The standard practice at the workplace when a subcontractor saw an unsafe condition
that it did not control was for the subcontractor to inform the general contractor of the
condition.  While Novak had complained to the general contractor about many
conditions at the site, it had never complained specifically about the uncovered floor
holes.

Testimony differed as to how long the floor
holes were uncovered.  The compliance officer testified that he had been told by the
general contractor's superintendent that the floor holes had been uncovered for two weeks.
  However, Ronald Novak, the Vice-President of Novak and Company, testified that the
floor holes had been covered when he was at the worksite approximately ten days before the
inspection.  The Secretary presented no evidence as to whether Novak's foreman, or
other supervisory employees, were aware of the open floor holes.

The Secretary now argues that Novak should have
advised the general contractor that the floor holes were guarded or, if the condition
remained unchanged, have remove its employees from the hazardous area.  Because the
Novak employees were exposed to the unguarded floor holes, the Secretary cited Novak for
violating 29 C.F.R. � 1926.550(b)(1).[[1]]

II

To prove any violation of the Act, the Secretary
must establish that the employer knew or, with reasonable diligence, could have known of
the violative condition.  Prestressed Systems Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864,
1981 CCH OSHD � 25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA
OSHC 1772, 1981 CCH OSHD � 25,345 (No. 13732, 1981).  In this case, the Secretary
has not presented sufficient evidence to establish that Novak knew of the open floor
holes.

The Secretary did not establish that any of
Novak's supervisory employees knew of the unguarded floor holes.  Therefore,
knowledge must be base upon a showing that Novak could have known of the violative
condition with the exercise of reasonable diligence.  The compliance officer's
testimony established that the floor holes were open at the time of the inspection and
that Novak employees were exposed to the openings.[[2]]  The Secretary also presented
hearsay testimony that the floor holes had been unguarded for about two weeks.  This
testimony was in conflict with that of Novak's Vice-President who said that the floor
holes had been covered when he visited the worksite ten days before the inspection.
  Even assuming, however, that the floor holes were open for two weeks, there is no
evidence that Novak employees were exposed to the unguarded floor openings for those two
weeks.

Novak presented testimony that the worksite was
constantly changing and that the route which Novak employees would use to get to their
work areas changed from day to day and even from hour to hour.  For example, on the
day of the inspection, Novak employees had to walk around lumber and reinforcing rods in
order to get to their work areas.  This circuitous route brought them near the
uncovered floor openings.  The Secretary admits that if the lumber and rods had not
been there, the Novak employees would have had no reason to pass by the floor openings.

The critical point is that the Secretary never
established how long Novak employees had used a route which took them by the floor
openings.  The record indicated that Novak was a conscientious employer who
complained to the general contractor when its employees were exposed to unsafe conditions.
[[3]]  Given the concern Novak has shown its employees in the past and the testimony
that conditions at the worksite and the routes Novak employees would use were constantly
changing, it is more likely than not that the particular route used by Novak on the day of
the inspection was merely temporary.  There is no evidence to indicate that Novak
employees were exposed to the floor holes for an amount of time which could have made
complaints to the general contractor feasible.  There is certainly no evidence to
establish that Novak employees were exposed to the open floor holes for ten days or two
weeks as the Secretary seems to assume.

Since the Secretary has not established how long
Novak employees had passed by the open floor holes, we cannot say, on this record, that
Novak knew or, with reasonable diligence, could have known of the hazard.

Therefore, for the foregoing reasons we affirm
that the judge's vacation of the citation.

FOR THE COMMISSION

RAY H. DARLING

EXECUTIVE SECRETARY

DATED: JAN 31 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[*]] Commissioner Buckley took no part in the decision of this case.
  Although a new Commissioner possesses the legal authority to participate in pending
cases, participation is discretionary and is not required for the agency to take official
action.  Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD �
22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion).  See
� 12(f) of the Act, 29 U.S.C. � 661(e).  Chairman Rowland and Commissioner Cleary
reached agreement on the disposition of this case prior to the assumption of office of
Commissioner Buckley.  Participation by Commissioner Buckley would therefore have no
effect on the outcome of the case and would delay the issuance of the decision.
  Accordingly, in the interests of efficient decision-making, Commissioner Buckley
elects not to participate in this case.

[[1]] 29 C.F.R. � 1926.500(b)(1) requires

(b) Guarding of floor openings and floor holes.
(1) Floor openings shall be guarded by a standard railing and toeboards or cover, as
specified in paragraph (f) of this section.  In general, the railing shall be
provided on all exposed sides, except at entrances to stairways.

[[2]] Because the citation is being vacated on
other grounds, Chairman Rowland does not reach the issue of whether Novak employees were
exposed to the unguarded floor holes where employees were observed walking within three
feet of the openings.

[[3]] The citation presently before the
Commission is the only alleged serious violation for which Novak was cited.